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[2017] ZALCJHB 468
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South African Maritime Safety Authority (SAMSA) v Dziruni and Another (J1818/17) [2017] ZALCJHB 468 (15 December 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J 1818/17
In
the matter between:
SOUTH
AFRICAN MARITIME SAFETY
AUTHORITY
(‘SAMSA’)
Applicant
and
MURORO
DZIRUNI
First Respondent
THE
SHERIFF OF THE HIGH COURT,
PRETORIA EAST
Second Respondent
Heard
:
07 November 2017
Delivered
:
15 December 2017
Summary:
(urgent application to stay a writ – application for leave to
appeal still to be condoned –
writ stayed notwithstanding
pending condonation application - costs)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an application for a stay of a writ launched on 31 October
2017. On the same day, the second respondent launched an
application
for contempt on account of the applicant’s failure to reinstate
the
second respondent in terms of the court order
mentioned below.
Background
[2]
The first respondent ought to have been reinstated in terms of the
settlement agreement with retrospective effect to 31 March
2017. This
agreement was made an order of court on 31 August 2017, but despite
receiving the judgement, SAMA did not respond. Eventually,
on 8
September 2017, first respondent’s attorneys put the applicant
on terms to indicate whether or not it intended to comply
with the
order. He also advised that it would apply for a writ of execution to
obtain payment of the back pay due. In response
to a further
approach, all SAMA was prepared to do was to send an email requesting
time to “allow us to revert in due course”
a somewhat
meaningless response since the first respondent was clearly entitled
to a reply without any further delay, armed as
he was with a court
order in his favour.
[3]
Eventually on 14 September 2 017, the respondent’s attorneys
notified the first respondent that it wished to prosecute
a review
application it had launched on 16 August 2017. The first respondent
responded by pointing out what should have been glaringly
obvious to
SAMA’s attorneys if not to SAMA itself, namely that no review
application could be entertained because the settlement
agreement had
already been made an order of court. The first respondent advised on
19 September that it would proceed with the
contempt application and
that it intended to seek a writ of execution to obtain backpay owing
in terms of the settlement agreement.
[4]
On 19 October 2017, the applicant also applied for leave to appeal
against the judgement making the settlement agreement and
order of
court. On 24 October 2017, the applicant also applied for condonation
for the late filing of the application for leave
to appeal. The
application for leave to appeal was only filed once the first
respondent had attached the applicant’s assets.
Both these
applications are opposed but no decision has been handed down in
respect of either the condonation application or the
application for
leave to appeal.
[5]
Prior to launching this application, the parties had been
corresponding with each other about the effect of the application
of
leave to appeal being noted. The respondents were of the view that as
the application for leave to appeal was filed late and
had not been
condoned there was no application for leave to appeal pending and
therefore section 18 (1) of the Superior Courts
Act number 10 of
2013, which suspends the effect of a court order except in
exceptional circumstances was inapplicable.
[6]
The principal basis of opposition to the application raised by the
1st
respondent is that the application should be dismissed
for lack of urgency, because the urgency is self-created. It is clear
on
the papers that the applicant was aware of the existence of the
court order on 1 September 2017. It took the applicant nearly two
months to launch this application. The applicant’s
conduct in the way it has resisted giving effect to the court order
is characterised by the dilatoriness. I am strongly inclined to
dismiss the application for lack of urgency, but it is evident
that
the parties may return again to court to determine the merits of the
application to stay execution based on the applicability
of section
18 (1) of the Superior Courts act in circumstances where the late
filing of an appeal has not yet been condoned. It
would be a complete
waste of both parties’ resources and the courts time for yet
another application to be entertained on
this issue. In the
circumstances, notwithstanding the dilatoriness of the applicant it
is appropriate to deal with the crisp legal
question.
[7]
Section 18 (1) of the Superior Courts Act states that:
“
Subject to subsections (2) and
(3), and unless the court under exceptional circumstances orders
otherwise, the operation and execution
of a decision which is the
subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of
the application or appeal.”
On
the other hand, although the application for leave to appeal was
filed late, the applicant did apply promptly for condonation
for the
late filing thereof. The court has a discretion whether or not to
stay a writ of execution. In my view, it would be unnecessarily
rigid
of the court not to allow the application for condonation for the
late filing of the appeal to be determined when that ruling
will
materially affect the applicability of section 18 (1). Consequently,
I am inclined to stay the execution of the writ at least
until such
time as that ruling is made.
[9]
On the question of costs however, as the applicant appears to be
engaged in a generally dilatory course of conduct it would
not be
appropriate that it be ordered its costs in this application.
Order
[1]
The application is dealt with as one of urgency, and non-compliance
with the Rules of the Labour Court relating to time periods
and
service is condoned.
[2]
The writ of execution issued out of the Labour Court on 16 October
2017 under case number J1818/2017, which was attached as
Annexure
“JC1” to the founding affidavit and all steps taken
thereunder, are stayed pending the determination of the
condonation
application in respect of the late filing of the application for
leave to appeal against the judgement of the court
in this matter
handed down on 31 August 2017.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
B
Khoza of Khoza &
Associates
Inc.
RESPONDENT:
B
Ford instructed by Ndumiso
Voyi
Inc.